By Tom Jackman
Washington Post Staff Writer
Tuesday, March 1, 2011; 10:33 PM
After an hour of listening to a defense attorney on Tuesday detail the circumstances of how Nathan "Dirk" Smiler was killed by a rifle shot in his own bedroom last year, Fairfax County Circuit Court Judge Michael F. Devine had one question:
"Who pulled the trigger?"
The question was posed to Peter D. Greenspun, the attorney for Smiler's girlfriend, Cara Cottle, who is charged in the killing.
"I cannot say Mr. Smiler did or did not pull the trigger," Greenspun said. "And I cannot say Ms. Cottle did or did not pull the trigger."
And so the hearing, held to allow Cottle to enter an Alford plea in the case (in which a defendant doesn't admit guilt but acknowledges that there is enough evidence for a conviction), continued for three more hours but did not result in a finding of guilt. In fact, Devine left open the possibility of a suspended imposition of sentence, with neither a conviction nor a day in prison for Cottle.
Devine ordered a pre-sentence report on Cottle, a 32-year-old former Marine, and scheduled a sentencing hearing for June 3. Judges sometimes defer making a finding of guilt until after reading the report, then both convict and sentence the defendant at the same hearing. Cottle faces a range of possible punishments, from probation to 10 years in prison on a charge of involuntary manslaughter.
Looming above the hours of grisly discussion about the damage done to Smiler's head by one point-blank 8mm rifle shot, endured in agony and tears Tuesday by Smiler's family and many friends, was the prospect of a suspended imposition of sentence.
The concept is not new: A judge hears a case, then delays imposing sentence - or even delays finding someone guilty - for several months, a year or maybe more, and then dismisses the case if the defendant stays trouble-free. The dismissal is typically done for young, first-time defendants, often in drug-possession cases and sometimes with the consent of the county prosecutor.
But some Virginia judges thought that they didn't have the authority to do that, and so in January, the Virginia Supreme Court, in the case of Hernandez v. Commonwealth , reaffirmed that a "court has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date."
Prosecutors promptly urged the Virginia General Assembly to amend state law to remove the judges' authority.
The legislation passed the House but did not emerge from the Senate Courts of Justice Committee.
Defense attorneys in Fairfax were wary that Greenspun, seeking to use the suspended imposition in a murder case, would inflame legislators to again seek to bar the idea altogether. Greenspun said he expected legislators would do that anyway.
The unusual two-day hearing in Cottle's case came after she and Greenspun cut a deal on the eve of her murder trial Monday. She would enter an Alford plea to involuntary manslaughter, which has the same legal effect as a guilty plea. Prosecutors agreed to dismiss a gun charge and allow Cottle to remain free on bond until sentencing.
But after Assistant Commonwealth's Attorney Mark Sullivan summarized how Cottle and Smiler wound up in bed with a World War II-era Mauser rifle between them, Greenspun began to give his own version of events because he wanted to lay the groundwork for a suspended imposition.
Greenspun said that Cottle and Smiler, 37, a sommelier and renowned figure in the District nightclub scene, had an open relationship and that their housemates on Little River Turnpike in Annandale were aware of this.
But on Feb. 15, 2010, Cottle spotted a text message on Smiler's phone indicating that he was sleeping with someone else, which he had not told her about. The housemates told police that Cottle stormed up to Smiler and punched him in the face.
Eventually, the two retreated to their basement bedroom, and all was quiet for about 90 minutes.
Then, the housemates heard a boom and Cottle ran upstairs, naked and shrieking.
Greenspun played tapes of the housemates' statements to police. Stephen Balazs told detectives that Cottle said to him: "They were fooling around with the gun, and Dirk told her if she wanted to shoot him, go ahead. And she didn't know there was a bullet in the chamber."
Cottle also reportedly told friends that Smiler was holding the barrel of the rifle to his forehead as part of his challenge to her.
Greenspun said gunshot residue tests showed stippling, from the gas and gunpowder of a gun barrel, on Smiler's right hand. His blood was on the trigger.
Greenspun said that both Smiler and Cottle had their hands near the trigger and that either one jostling the gun could have made the other accidentally pull the trigger.